'What Idiot Wrote The Patent That Might Invalidate Software Patents? Oh, Wait, That Was Me'

from the rethinking-patents dept

We recently wrote about a surprising Federal Circuit (CAFC) ruling that might open the door to invalidating a lot of software patents. We received an an interesting comment on the post a few days later from John Pettitt:

So I was thinking - great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it - then I realized the idiot in question was me :-)

Not sure how I feel about this.

John - inventor of the patent in question.

Pettitt is now running an interesting operation called Free Range Content, which helps companies syndicate content easily. However, a while back, he was the named inventor on patent 6,029,154, describing a "Method and system for detecting fraud in a credit card transaction over the internet." We reached out to Pettitt to ask him a few questions about his views on the patent system and he kindly agreed.

Given his comment, calling it "great" that software patents could be invalidated, we wanted to know if he was completely against software patents. Not surprisingly (and here we agree with him), he notes that the issue is more complex than that:

It's a complex issue. I don't think they are inherently bad, however the loose examination standards and a lack of guidance from the courts let a lot of bad patents through. Patents are meant to protect innovation so they should be held to a high standard. Unfortunately the patent industry relies far too much on patent prior art and ignores the vast corpus of open material. The result is that many patents look stupid on their face to anybody 'skilled in the art.'

This is a good point and one we've raised many times before. So many patents that are issued are ridiculed by people actually skilled in the art, demonstrating how they never should have been issued. But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented.

Given that this was his patent, we wondered if his views towards patents had changed over time, and he noted, not really:

It hasn't change much. I've never been a big fan of the broad swath of business method patents and even less of a fan of the process for creating and litigating patents. That said, it's the world we live in. So, like every other Silicon Valley entrepreneur, I file patents.

This is something we hear all the time from almost every entrepreneur in Silicon Valley. Patents feel like a "necessary evil," but no one feels like they need them. This should really wake up Congress. They always talk up how patents help and protect entrepreneurs, but the reality is that they're a complete nuisance for most.

Given that it's his patent and he seemed surprised about it, we wondered if he even knew it was involved in a lawsuit. He noted that he has no relationship with any of the parties any more. While he noted that he knew his patent was involved in a lawsuit somewhere, he didn't know that it had reached the appeals court, which was part of the surprise. We also asked if he ever expected that a patent of his would be central to a key ruling about software patents, and he admitted it never crossed his mind:

No. honestly I expected some of the more extreme software patents to be the test cases.

We closed with the big question. One of the key reasons why CAFC rejected the key claims was because they were merely "mental processes" that someone could do with a pencil and paper, and thus didn't require any actual machine. Noting his stated mixed feelings about this result, I asked how he felt about this reason for rejection, and here he dove in with a bit more detail:

This is where it gets interesting. If you go down this route, any patent that results in purely a change in stored information is invalid. I don't think that would be a good outcome. Taking my patent as an example: yes, you could do everything it says in your head. In fact, that’s how I came up with the idea. However for a practical application of the idea you have to implement it in a computer system. Doing it by hand is too slow. This leads to the interesting question: if I build a machine with the code burned into ROM, making it a dedicated tangible device that could only do fraud detection, would that be ok? What about if it produces a tangible result (say printing a fraud warning?). Now if I put the same code on a general purpose computer would that be ok? Compare it to a medical device that takes metabolic readings and alarms if they go out of bounds: You could do the same by sitting a nurse down to watch the patient, but the automated device only processing information is clearly patentable under current rules. As computing becomes pervasive and everything becomes computer controlled or computer mediated it's still important to be able to protect original, non-obvious, ideas.

This is a fair response, and it's one of the key reasons why I've also been hesitant to fully agree with those who wish to carve out software patents. It just seems like something that would be a lot more difficult in practice (though there could be a few ways to do it).

But that doesn't mean the system isn't really, really broken, and Pettitt outlined the details of the problem and a potential solution, from his point of view as an entrepreneur, an inventor and a patent holder:

The problem today is that it's expensive to litigate individual patents and in many cases it's cheaper to pay up than to litigate even if the patent is clearly junk. I think the solution to the software patent issue might include some or all of the following:

Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity.

Shorter lifespan for software patents (7-10 years?)

End the venue shopping for lawsuits and impose meaningful punitive damages for the assertion of claims that clearly don’t apply (similar to anti SLAPP statutes)

Patents are meant to foster innovation by protecting the inventor and then upon expiry providing a library of information for others to build on. To this end, going forward, if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid.

The "panel of experts" is similar to what I suggested recently in my "how to fix the patent system" post. I also really like some form of extending anti-SLAPP type laws to bogus patent suits. As we've pointed out in the past, it's incredibly difficult to get a totally bogus patent lawsuit dismissed without it first costing you a ridiculous amount of money. Other types of lawsuits are much easier to get dismissed. Why not patents? I also like the idea that weak disclosures should invalidate a patent, since that would kill a bunch of patents, but I do wonder how you put that into practice. If anything, it seems like the kind of thing that should be solved at the beginning -- in that a patent examiner shouldn't approve a patent that doesn't really teach anything. As for shorter terms for "software patents," we're back to how do you define a software vs. hardware patent.

Still, thanks to John for taking the time to talk. We're so constantly told by patent system supporters that only patent holders should be allowed to comment on the patent system (a claim that's complete nonsense, of course), so it's nice to speak to one (of many) who sees many of the current anti-innovation problems of the system.

In a world with short, reasonable patent terms, where only the most inventive, unique ideas were patented, where the patents were narrow, where there was a quick review process, and where those patents were put into the market or were very clear and instructive: Are patents good? Yes.

In a world with long and growing patent durations, where any obvious idea, inevitably part of progress, with overly broad claims, and where a slow review process which assumed validity with injuctive 'relief', where non-practicing entities impeded true innovators, and where patents were deliberately written so vaguely as to be incomprehensible: Are patents good? No.

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Nice try, would you like to point out where these posts are debunked ? Over the last couple of years, I've yet to see it myself, as pretty much every post that tries to rebutt Mike seems to be opinions with no hard evidence or even citations of reports.

Can anyone please give an example

Re: Can anyone please give an example

I'm in this boat. Copyright, sure. That's natural. But patents?

The main thing would be an "independent invention" defense. If someone else comes up with something that could be covered by your patent without looking at your patent, you really don't deserve one because that means whatever you "invented" was really just "innovated" and evolutionary, and the result of a natural progression.

Re: Re: Can anyone please give an example

>> you really don't deserve one because that means whatever you "invented" was really just "innovated" and evolutionary, and the result of a natural progression.

I don't think there is anyone, short of an accident, that bypasses this evolutionary growth.

I don't see patent applicants living in caves for 20 years prior to filing a patent in order to make sure they are not exposed to any contributions from society. Most contributions are not patented, and patent applicants accept them -- their surroundings and social context -- readily.

Software patents have the problem that while some areas are under-served by inventors because the costs to participate are very high or few are attracted, that is not the case for software. AND a monopoly on software ideas would handcuff thousands if not millions.

Concluding, I agree with the majority of your comment, but we should not pretend that patent applicants work from within a cave or island unexposed to the last 20 years of evolution. If they can create from this context, so can many other people. We all deserve the chance.

Aside: If we want to entice people to open up, then we should seek other ways AND we should do so only AFTER they have an actual valuable narrow trade secret we want and cannot figure out.

Re: Re: Can anyone please give an example

Independent invention happens all the time. Competing groups of scientists/entrepreneurs looking for a solution to a problem will often come upon the exact same solution. This often happens within weeks or days of each other. It's one of the reasons why "first to invent" versus "first to file" is a very important distinction.

Re: Can anyone please give an example

You're exactly right: there is no software that deserves patent protection. Why? Because software is content.
Patents cover devices. Copyrights cover content.
This was the rule until the late 90's, and it should be the rule again.

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Right. You've patented that particular implementation of the algorithms, not the algorithms themselves.
A software patent is a patent on an algorithm. That is why they should be abolished.
In other words, the line for patentability needs to be drawn at physical design, not conceptual design.

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I don't like the idea of software patents either, I was just arguing because the article made me think. But that does bring up an interesting point. If you use a different processor, or chipset, you are now using a completely different implementation on an electrical device level even if identical source code is used.

From a practical standpoint it doesn't really make sense to call these things different because it would give rise to a semiconductor industry that made different chips designs just because they were different and would therefore make otherwise nonpatentable copies patentable. However, it would solve the implementation/algorithm problem.

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I've written and prosecuted dozens of computer-related and computer-implemented inventions. Honestly I would not know how to exclude them from normal patents without violating the basic subject matter permitted in sec. 101: for machines or apparatuses, and processes or methods. If I write software this is way of doing something; and when you load it into a computer, the computer becomes a new machine. So if the process implemented by the software is nonobvious and novel, then it's statutory subject matter; if the machine as modified by having the software loaded in it is now a nonobvious machine, then it's patentable subject matter.

The problem is patents per se. Not that they extend to computer-implemented inventions; just like the problem is patents, not patent trolls.

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@Stephan Kinsella, I am really interested in your opinion on this comment if you find the time.

I agree that any patent monopoly poses problems, but not all are created equal. In what follows, I'll accept for the moment that some might be arguably useful.

>> Honestly I would not know how to exclude [swpat] from normal patents without violating the basic subject matter permitted in sec. 101: for machines or apparatuses, and processes or methods.

This law is not constitutional (promote the progress, speech, and related SCOTUS point that ideas cannot be owned) if it allows arbitrary methods to be owned. Either we have implicit limits on what is a process for 101 or we add another restriction explicitly (beyond novel and non-obviousness).

A natural limit would be to disallow the *process* monopolies over whatever technology current defines as "conventional" or readily accessible.

Of course, there are many problems with patent law, so we can certainly come up with many justifications, but the above "rule" would block most software patents. Effectively, the patent exists, but if at the time of lawsuit, the materials are conventional, then it does not infringe ("fair use"). This still allows for a super optimized implementation using sophisticated semiconductor technology (or analog technology) that bypasses "inefficiencies" of a reprogrammable computer technology.

Simply, information (digital) should not fall under patent idea ownership. We should look at the cost details of the actual material product related to the process. Are the *process* information "bits" cheap to add/modify or not? For example, is this digital and reprogrammable at low costs in dollars, time, and energy using common devices? How many people can perform this in practice? Anything that is easy and cheap should be "fair use".. in order to avoid handcuffing a great many, in order to avoid stifling the progress.

Patents are to help even the playing field against those with lots of capital. It isn't to slow research, curtail ordinary liberties, or block what is inexpensive from getting done.

Ideas to block many precise expressions of information cannot be owned.

>> when you load it into a computer, the computer becomes a new machine.

No more than you become a new human when you are performing a different activity or are coming to a new conclusion based on new inputs fed to your brain.

We can say that a person becomes a "calculator" when they perform a calculation, but we all know the person is still the same thing simply mimicking something else. Same with the computer. All the essentials were already encoded into the system (eg, a Von Neumann construction) even if we can make it mimic many things.

Some would argue that it takes skill to find the right initial configuration to place the computer into. So? It takes tremendous skill to do mathematics or any of many other disciplines where thankfully we don't award patents.

The original parent comment already covered how we might draw a line. Essentially, it becomes an issue of cost (time, money, energy, architecture, efficiencies, people affected).

We can get "fair use" for patents by disallowing patents to be used against products architected a certain way where the digital information is essentially abstracted away and can be manipulated independently of the rest of the hardware. As one bar to be met for infringement, the patent must be compared against the product component that the ordinary user (so we also might have the concept of ordinary user) is not able to modify with reasonably low-cost and efficient means. We might even draw a line between where a consumer has full control to modify and where they don't. We might also consider legal rights (contractual or copyright) vs physical rights.

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I agree that any patent monopoly poses problems, but not all are created equal. In what follows, I'll accept for the moment that some might be arguably useful.

I cannot accept that. Patent monopolies are useful to some, but not to others.

This law is not constitutional (promote the progress, speech, and related SCOTUS point that ideas cannot be owned) if it allows arbitrary methods to be owned.

I don't agree. The Constitution is itself arbitrary and nothing but positivist, constructivist, centralist legislation. it is incoherent and does empower the central state to legislate--to make arbitrary law.

Simply, information (digital) should not fall under patent idea ownership.

This makes no sense to me. You cannot have an institution that grants patents for inventions, then just carve out an arbitrary exception like this.

Patents are to help even the playing field against those with lots of capital.

Nonsense. It actually helps larger companies, since they can afford the patent lawsuits and to acquire large patent portfolios that they can use as bargaining chips wiht other large companies. Meanwhile the smaller companies cannot compete with the larger ones because they cannot afford the patent lawsuits and do not have resources to acquire a big enough patent portfolio to deter patent lawsuits.

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Is there anything that doesn't fall into this group of things that are useful to some but not to others?

I don't see your point.

> > This law is not constitutional [for unlimited process patents].
> I don't agree. The Constitution is itself arbitrary

The Constitution is rather open ended, but that doesn't mean it can't be used as a guide in a democratic process or, in our case, in a flawed process based indirectly on something resembling a democracy.

Anyway, it's my opinion to call it "constitutional", and I only included that statement in my comment to add a bit of context. The context is my opinion that if patent law doesn't "promote the progress" in the view of many citizens (an idealization), then these same people should agree that the law should be changed to something that does a much better job at trying to promote the progress. Ultimately, we might simply decide to discard the whole thing or tone it down "arbitrarily".

> > Patents are to help even the playing field against those with lots of capital.
> Nonsense. It actually helps larger companies

I was referring to what I think is a popular motivation/justification for the system. A patent right that was not transferable or which had reduced rights and higher costs when traded to a wealthier entity could be made so that large companies would not be likely to benefit more than inventors. The wider public would always lose more than gain under some measure function or other. So from the idealistic pov of how do we define patent law, we have large leeway in writing the details and consequently be likely to benefit most.

I agree the patent law we have helps large companies for reasons which include the reasons you gave.

> > Simply, information (digital) should not fall under patent idea ownership.
> You cannot have an institution that grants patents for inventions, then just carve out an arbitrary exception like this.

It's all subjective, but if you wanted to try and narrow things down somewhat (with all the arbitrariness that would result), you certainly could because we already do, or are you saying that if we change 101 102 and anything else that we will end up with the same likely state of what is patentable or not?

Any government is as bad as any other? Utilitarian concerns are irrelevant. I thought you might be willing to compromise on trying to separate some of the darker grays from some of the lighter ones.

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> > Patent monopolies are useful to some, but not to others.

Is there anything that doesn't fall into this group of things that are useful to some but not to others?

I don't see your point.

The point is that it's whether patent law "is useful" to someone is irrelevant to whether or not it's justified. The drug war is useful to the drug syndicates. War is useful to the defense contractors.

> > This law is not constitutional [for unlimited process patents].
> I don't agree. The Constitution is itself arbitrary

The Constitution is rather open ended, but that doesn't mean it can't be used as a guide in a democratic process or, in our case, in a flawed process based indirectly on something resembling a democracy.

It can be used as a guide, but that does not make it--nor democracy--legitimate.

> You cannot have an institution that grants patents for inventions, then just carve out an arbitrary exception like this.

It's all subjective, but if you wanted to try and narrow things down somewhat (with all the arbitrariness that would result), you certainly could because we already do, or are you saying that if we change 101 102 and anything else that we will end up with the same likely state of what is patentable or not?

I think you would have to change 101 to carve out software patents. I am not averse to doing this, of course, but I am not sure there is a clear, objective way to even identify or define software patents. What would you do, remove processes from 101? Or say that you remove processes that are implemented on any computer? Or remove "programmed, general purpose computers" from the type of machines/apparatuses that can be patented? Fine by me.

Any government is as bad as any other?

I never said that. Some are worse than others, but they are all bad, just as all criminals, and all mafias, and all wars, are bad, even if some are worse than others.

Utilitarian concerns are irrelevant. I thought you might be willing to compromise on trying to separate some of the darker grays from some of the lighter ones.

I have already proposed some incremental changes to IP law that would be substantial improvements, short of abolition. See Reducing the Cost of IP Law.

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>> The point is that it's whether patent law "is useful" to someone is irrelevant to whether or not it's justified. The drug war is useful to the drug syndicates. War is useful to the defense contractors.

OK, and I will avoid a discussion here on what constitutes "justified"

>> I am not averse to doing this

I'll take what I can get and continue.

>> I think you would have to change 101 to carve out software patents.

Or (looking it up...) adjust the definition of processes, 100 (b).

>> What would you do, remove processes from 101?

That is a possibility.

.. or narrow the scope (which, as mentioned next, might be something the courts could do without any explicit rewriting of the law -- a la M-O-T test).

>> Or say that you remove processes that are implemented on any computer?

I made suggestions in this thread (eg, we could use a "fair use" framework), to which I would add:

-- no patent where the invention is merely another machine reconfigured.

So any device that would otherwise "become" the invention merely by reconfiguring it would not qualify.

We can define "reconfigure", but a standard definition would work here.. basically the focus would be that taking an unpatentable machine (even if composed of various parts) and adjusting it using "conventional" tools in any way where we don't add or subtract significant physical matter.

This should cover a machine that is adjusted by giving it new information: a computer or anything that can be changed prompted by a "download" of information or key entry input.

One motivation for this definition is that a person should be able to change their product with modest effort without having to worry about a patent infringement. "Use" in the traditional sense should not be patentable. An infringement should only occur (in this view) when you have to take "extraordinary" efforts to create the invention.

It seems to me, this narrowing of "process" might be something that the courts could reasonably argue (along the lines of no mental steps) is a natural restriction on "processes".

The reason I added "conventional tools" is not to get off the hook a machine that takes the raw materials and reconstitutes something else that arguably uses the same exact amount of matter (since this would look and smell like a manufacturing processes rather than a reconfiguration); however, a "fair use" to patent law might allow the end user to always create (DIY) a new invention for personal use or commercial use (no matter the creation process) but perhaps not distribution (or at least not in large quantities relative to the size of the market).

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The simple fact is that loading software onto a computer does not make it a new machine. That argument is intellectually dishonest, just as loading a DVD into a player does not make it a different DVD player.
The problem is, the law has allowed itself to be abstracted too far. It has allowed a "machine or device" to become a "process", which then allowed ANY process to be covered.

Also, hardware patents require mechanical drawings. Software patents should require MACHINE CODE. No verbal abstractions, get the EXACT code for the processor that you wrote it for. Of course, copyright law covers this as well...

The problem is abstraction to the absurd level. The line should be clear. NO ABSRACTION.

Re: Can anyone please give an example

I used to work for a company that produced industrial software for the corrugated industry. At the heart of the software was a very complex algorithm that is used to determine how to cut the paper to reduce waste and what order to run the various papers for maximum efficiency. Apparently there are only a handful of people on the planet that can do this in without software but it is a long tedious process. The software essentially allows every corrugated plant to run with maximum efficiency at all times.

This is an example of software that should be patentable, in my opinion, despite the fact that I no longer am associated with said company.

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The problem is a known one: "We need to cut this paper, we want to minimize costs, how do we do it?"

And similar solutions would probably emerge if you separately asked a bunch of graduate math students from MIT, Stanford, Cornell, Ecole Polytechnique, an IIT, or University of Waterloo.

If you put out a crowdsource price, like Netflix did for recommendations, you would find many people submitting similar solutions. In fact, the Netflix prize is kinda a very similar challenge. It seems like a very specialized problem, but they had solutions come from around the world, from people approaching it from multiple disciplines, and with similar results. Turns out, the "flash of genius" to solve their problems was really common hard, iterative work.

Re: Can anyone please give an example

(Yes, this is an analogy drawn from Gates)
If I invent a plastic injection molding machine that carefully monitors the temperature and pressure of the chamber (all relays, analog sensors, and switches, no general purpose computer anywhere) to carry out a new method of curing plastic making it stronger and harder than ever before, that machine and process of curing the plastic is clearly patentable.

But in today's world, it would be foolish to do this with a purely analog system. Rather, I would use a PLC and program the process into it. That should still be patentable, as I have invented a new method and means of making a better plastic.

Thus, it is not just the machine, but also the software that carries out the process that is part of the invention. Just as a magnetics cabinet full of relays, capacitors, and timers hardwired to the machine would be part of the invention. The computer is just a more economical means of expressing the same invention. And it is most definitely an invention.

So I do think that there are patentable inventions who's optimal implementation is with a computer. I don't think all software algorithms constitute patentable inventions however. It's an overlapping Venn diagram. The complexity comes in making the rules that draw the lines between patentable invention and mathematical exercise.

shipping vs reconfiguring

>> But in today's world, it would be foolish to do this with a purely analog system. Rather, I would use a PLC and program the process into it. That should still be patentable, as I have invented a new method and means of making a better plastic.

I will assume when you say "should" you weren't talking about "promoting the progress" but simply wanted to argue that if analog is patentable than so should be digital.

I disagree with your conclusion, AND I disagree the problem is totally defined as analogy v digital. A/D are on the surface just models of operation. They provide an important clue to what might be infringing or not but themselves are merely different ways of analyzing and designing machines.

More generally, "digital" does not just refer to digitally defined behavior but in practice will mean the machine exploits a primary benefit of being digital: the machine can be reconfigured.

An analog (pun unintended) for the analog case would be instructions on how you turn knobs on a "generalized analog device" to get a new behavior, and that this tuning could even be done in near zero time by downloading the instructions into the "analog tuner machine" that comes with all such generalized analog devices. This is an analogy because in practice what we refer to as analog do not come with this behavior (acquire new configuration information).

So it's not just a matter of analog v. digital, it's a matter of changing the machine's physical components significantly and distributing this new machine vs. simply sending out the instructions on an existing communications infrastructure that is partly embedded within the existing machine itself (reconfiguring the machine with new instructions.. new calculations).

>> Thus, it is not just the machine, but also the software that carries out the process that is part of the invention. Just as a magnetics cabinet full of relays, capacitors, and timers hardwired to the machine would be part of the invention.

But a key difference is that you aren't shipping a new product, you are communicating new instructions to the old product.

If I send you a new recipe to code into your smart oven, I am not creating a new invention.

If I give you a set of new calculations you can punch into your sophisticated calculator to get new graphs or the answer to a new engineering problem, I am not creating a new machine.

>> So I do think that there are patentable inventions who's optimal implementation is with a computer.

Ship the whole new invention and that would be seen as different from simply "whispering" new instructions to the old machine.

blocking mathematics development and use

>> Absolutely not-obvious,

I hear there are a very large number of mpeg related patents. Many are likely very basic, and, taken together, they show that people grow through incremental improvements.

If the group of distinct patent owners did not pool together, we'd have the most basic and broadest patents block everyone. Patent law did not destroy this piece of the market only because this particular group got together to allow actual mpeg devices to be created and taxed for royalty payments. Note that in this case each person would get a tiny sliver of each such mpeg device. This is rather different than traditional patent lawsuit rewards (including an injunction).

As for open source, the patents are still rather broad and block potential improvements to the codecs. Open source tried to avoid all patents here by coming up with something that appears to be less than ideal. To use an analogy that might potentially be fit here: if you can't use a circular wheel (because a better circular wheel will infringe), then you have to settle for an oval one. It's not the fault of open source.

They are blocking at the level of mathematics and the associated progress in the art.

Re: Can anyone please give an example

None should.
People knowledgeable in economics know there's a long list of factual demonstrations that patent don't work to foster innovation, one of them being fashion business where the lack of both patent and IP instead *forces* peoples to be extremely innovative and come up with something new every few month or else they will copied and pushed out of business, another the Wright brothers patent war that almost killed the development of early aviation until the US government forced everyone to share their patents inside a patent pool, another how a patent on the early combustion engine froze both innovation and development of the industry, both exploding after expiration of the patent, and the company owning that patent making more money after it had expired because the market was much larger.

There's only one useful purpose of patents : Force people to describe their invention, so that other can copy it after it felt in public domain.
But in the case of softwares, if it's interesting enough, you can always reverse engineer how it works and copy it.
So patents on software serve no use.

The nurse watching an instrument is an excellent example of the problems with the "mental operation" standard. However, the real problem isn't that the mental operation standard is a particularly bad standard. I maintain that any standard you come up with is going to have similar problem cases, especially at its margins.

The real problem is that the patent system is an artificial system that the government tries to impose on the market. Because the patent system isn't a natural feature of the market the rules we impose will always be arbitrary and in some cases seem to be silly.

If we are going to have a patent system at all, then we have to accept that there are going to be some rules that don't quite make sense in all situations. The best that we can hope for is that we could develop a set of rules that make sense most of the time and don't get too badly in the way of innovation. Unfortunately the current system is exactly the opposite. The rules don't make sense most of the time, and the system seems designed to block innovation.

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If it's a special purpose device doing the mental operation it's patentable. If it's a general purpose computer running software, it's not.

More to the point, a general purpose computer would not be able to do the monitoring without custom made interfaces, unless they devices were implemented as usb attachments. More than likely an external dongle with all the smarts for the wires, attached via a usb cable. At that point the dongle and it's driver/software would still be patentable due to the hardware/software combination required to fulfill it.

If it were something that just ran on any pc picked up at your local overpriced electronics shop, without any additional hardware components, then it wouldn't be.

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"Natural feature of the market" is a nonsense statement. The market is a set of rules that we invented. It isn't a natural thing we discovered. It's a thing we collectively agree on, through laws and trust, that we can use for trade. It's a purely human creation.

So a patent system is absolutely a "natural feature" because WE MADE THE WHOLE THING UP. If we wanted a patent system, we put it there and boom, it's as natural as the rest of it.

(Hint: "free market" is an oxymoron. If it's a market, there are rules of conduct. Rules are restrictions on freedom. A market is, by definition, un-free.)

Software patents can't be defined

Mike, a few points.

You write: "This is a good point and one we've raised many times before. So many patents that are issued are ridiculed by people actually skilled in the art, demonstrating how they never should have been issued. But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."

I think you may have this interpretation slightly wrong. A claimed invention, to be patentable, must be both novel (new), and non-obvious -- in view of prior art. I think what Pettit is saying is that for software inventions, the relevant prior art is often outside of the database of published patents. But the PTO examiner looks primarily at "patent prior art"--that is, at issued patents and published patent applications. His point, I think, is that if the PTO could somehow look outside the narrow set of patent prior art, it would see that the current claims at hand are obvious--in view of other, non-patent, prior art that the PTO Examiner is apparently not aware of--but that other programmers experienced in the art are familiar with.

I think it's virtually impossible to provide sufficient software, non-patent prior art to Examiners, so it's futile to think they can ever do a good job finding the relevant prior art for many technical areas, including software inventions.

As for his proposed solutions, it's fairly tepid and confused.

"Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity."

Well if such a high bar for validtiy is possible, and if "panels of experts" are possible to assemble, why not have this done to all new patent applications in the first place? I think this idea is a pipe dream.

"Shorter lifespan for software patents (7-10 years?)"

This would require a coherent definition of "software patents" that distinguished them from other patents. I am not sure this can be done. Why not just shorten all patent terms to 7 years or shorter.

"End the venue shopping for lawsuits and impose meaningful punitive damages for the assertion of claims that clearly don’t apply (similar to anti SLAPP statutes)"

Venue shopping is not the problem. As for asserting claims that "clearly don't apply"--meh. This whole area of law is inherently non-objective. Anyway this is at most a minor fix, IMO.

"Patents are meant to foster innovation by protecting the inventor"

I think they are meant to protect inventors from competition by providing them with a limited monopoly privilege.

"and then upon expiry providing a library of information for others to build on. To this end, going forward, if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."

What does this even mean? Patents, to be granted, *already* are required to provide an *enabling* written description, *and* to disclose the best mode--though pending patent "reform" will dilute the latter requirement, as I note here. All current and recent patent reform efforts and suggestions are a joke. So, Mike, you are correct that the disclosure problem should be, and is alreayd supposed to, be addressed during the prosecution stage. Of course, this is well-nigh impossible, since the Examiners are not going to regularly be able to determine if best mode was disclosed, or if the written description is actually enabling. How can they know this? Are they supposed to build a working model themselves? Now THAT might be a good reform proposal: require the applicant to submit proof of an actual working prototype or model.

Re: Software patents can't be defined

"and if "panels of experts" are possible to assemble,"

Anything is possible Kinsella. The entirety of the patent system is a creature of congress. There are ample experts around which could be hired, either for all cases, or for only cases going to litigation or are asserted.

The question is, would the cost of doing so be acceptable to congress? And the answer is probably no. Even if you made the patentee pay the bill.

Re: Software patents can't be defined

7 years is too long for software. Hell, I can't remember the code I wrote last year. If you can't monetize software within 3 years, you're screwed. We're working with laws that are not made for the digital world. I plan to have a talk with my rep, but he's a computer idiot. Thankfully, I fix his personal computer often. He can't get the idea that you don't click on every link sent to you.

My recollection is not that only "patent holders" should speak to these issues, but that persons truly familiar with the entire "process" (conception, reduction to practice, application preparation and prosecution, issue, claim construction, litigation, etc.) are the ones most likely to understand all the nuances associated with the relevant issues.

One correction, if I may. Prior Art for purposes of claim examination includes both "new" (Section 102) and "non-obvious" (Section 103). Rarely does "new" arise. By an overwhelming majority patentabiliity turns upon a combination of references directed to the issues of "non-obvious".

Re:

Why would you assume there even is anyone familiar with the entire process, the process will have many actors and people are affected differently. An inventor trying to issue a new patent will be familiar with that part of the process, someone working at reviewing them would be familiar with that part, someone getting sued for supposedly violating a patent that they can't afford to defend against will be familiar with that part of the process, someone trying to build their own projects and having to waste all their time trying to figure out what is already taken will be familiar with that part. The judge that has to rule on stupid issues will be familiar with that part, etc, etc

Re:

My recollection is not that only "patent holders" should speak to these issues, but that persons truly familiar with the entire "process" (conception, reduction to practice, application preparation and prosecution, issue, claim construction, litigation, etc.) are the ones most likely to understand all the nuances associated with the relevant issues.

Really? So, only the construction worker who is putting in place the steel beams should be able to comment on the economic and city planning consequences of building a sky scarper?

I'd prefer that the folks who are down in the weeds not be the ones commenting on the overall impact of the system. They're the ones who profit from the system and are inherently biased.

One correction, if I may. Prior Art for purposes of claim examination includes both "new" (Section 102) and "non-obvious" (Section 103). Rarely does "new" arise. By an overwhelming majority patentabiliity turns upon a combination of references directed to the issues of "non-obvious"

That's not a correction. That's being misleading. Anyone who actually looks at what the USPTO approves knows it wouldn't know obvious if obvious bit them and tried to patent the resulting bite marks.

Re: Re:

Really? So, only the construction worker who is putting in place the steel beams should be able to comment on the economic and city planning consequences of building a sky scarper?

Apparently I was not as clear as I thought in responding to your comment "We're so constantly told by patent system supporters that only patent holders should be allowed to comment on the patent system..." My point was simply to note that a thorough understanding of the system typically enables one to recognize the many nuances that are otherwise missed by those not having such an understanding. The individual with whom you spoke appears to have such an understanding and, thus, spoke with more measured words than might otherwise have been the case.

That's not a correction. That's being misleading. Anyone who actually looks at what the USPTO approves knows it wouldn't know obvious if obvious bit them and tried to patent the resulting bite marks.

Kinsella makes the same point, so I do not believe any further elaboration is necessary.

Re: Re: Re:

Re: Re: prior art

Mike,
AC wrote:

"One correction, if I may. Prior Art for purposes of claim examination includes both "new" (Section 102) and "non-obvious" (Section 103). Rarely does "new" arise. By an overwhelming majority patentabiliity turns upon a combination of references directed to the issues of "non-obvious""

If I read him right, what he is saying there are two ways the Examiner can reject the patent: 1. If he finds ONE prior art reference (whether a patent or other publication) that describes the claimed invention exactly -- this is the novelty hurdle; 2. If he finds 2 or more prior art referenes that together describe the features of the claimed invention, where it would be "obvious" to someone skilled in the art to combine the two references.

Of course it's a non-objective judgment call what it means to be "obvious to combine" the references, or how you prove this. His argument is that it's relatively rare to find case 1; most of the time the Examiner is left trying to combine references to shoot the patent down on obviousness grounds.

But I think you are certainly right in saying: "Anyone who actually looks at what the USPTO approves knows it wouldn't know obvious if obvious bit them and tried to patent the resulting bite marks."

There are a few reasons the PTO lets patents issue that look "obvious" to others. One is that the PTO is an incompetent bureaucracy. Another is the standard for obviousness is not objective, scientific, or rigorous; it is vague and subjective. Another is that the Examiners are only looking at one narrow source of possible prior art (e.g., the patent databases), but are not often aware of tons of other prior art out there that programmers are aware of.

Re: Re: Re: prior art

"There are a few reasons the PTO lets patents issue that look "obvious" to others. One is that the PTO is an incompetent bureaucracy. Another is the standard for obviousness is not objective, scientific, or rigorous; it is vague and subjective. Another is that the Examiners are only looking at one narrow source of possible prior art (e.g., the patent databases), but are not often aware of tons of other prior art out there that programmers are aware of."

While I take little issue with your reasoning here Kinsella you forgot the no. 1 reason why the PTO issues claims that look obvious to others.

The court's interpretation of 103. They make it into a fact based analysis where all the facts found must be supported by substantial evidence. Surely you know this.

You can't just come out and declare "it's obvious!" to reject claims. You have to find facts, and do all this rigamarole. And you have to do it fast.

FOR. EVERY. SINGLE. CLAIM.

As and aside remember:
People can draft/amend claims faster and much easier than it is to shoot them down.

Not to even mention that there is a fundamental lack of responsibility inherent in the patent PROSECUTION system. Specifically on the part of the applicant, their attorney, and the office. All three parties are completely unaccountable to anyone to get it right. The applicant has no responsibility to ensure his claims are at least reasonably clear of prior art, and to find prior art, before even filing. The office has no consequences for not accomplishing its task of correctly examining the claims. Thus it has no real responsibility to do things right.

Bottom line, increase the responsibility that the involved parties have in the system and watch the problems go down.

Re: Re: Re: Re: prior art

""There are a few reasons the PTO lets patents issue that look "obvious" to others. One is that the PTO is an incompetent bureaucracy. Another is the standard for obviousness is not objective, scientific, or rigorous; it is vague and subjective. Another is that the Examiners are only looking at one narrow source of possible prior art (e.g., the patent databases), but are not often aware of tons of other prior art out there that programmers are aware of."

While I take little issue with your reasoning here Kinsella you forgot the no. 1 reason why the PTO issues claims that look obvious to others.

The court's interpretation of 103. They make it into a fact based analysis where all the facts found must be supported by substantial evidence. Surely you know this.

You can't just come out and declare "it's obvious!" to reject claims. You have to find facts, and do all this rigamarole. And you have to do it fast. "

I am not sure what you are trying to say. I already said "Another is the standard for obviousness is not objective, scientific, or rigorous". I don't konw what else the court coudl do except make the 103 analysis "fact based". But I am not sure where it says it has to be supported by "substantial evidence." Where do you get that from? This seems nonrigorous and not well defined, and just a made up standard.

Sec. 103 says you can only get a patent if it's nonobvious. The courts interpret this to mean the Examiner needs to find some references to support the rejection, and some kind of reasoning or reference to suggest combining the refernces or to argue the leap from the prior art to the claimed invention was an obvious one (though, as I observed in Radical Patent Reform Is Not on the Way, the KSR v. Teleflex case made it a bit easier for an examiner to find obviousness: "As a result of the ruling, "now I can just say, common sense, and a person who was skilled in the particular area, would have known that you could solve this problem using this technique," said Philip Swain, a patent attorney with the firm Foley Hoag in Boston. "You don't have to have a written suggestion or other evidence to suggest the combination; you can just say the person would have inherently known to use that solution."
Read more: http://news.cnet.com/Supreme-Court-loosens-patent-obviousness-test/2100-1014_3-6180220.html#ixzz1VtF b1m3h
"]

Re: Re: Re: Re: Re: prior art

"I am not sure what you are trying to say. I already said "Another is the standard for obviousness is not objective, scientific, or rigorous". "

Precisely. You say that it is not objective, scientific or rigorous. And if one were to just look at the statute then one would certainly think that. But the courts are over here trying to make it an objective, scientific and rigorous as they possibly can and have largely succeded. You know the Graham factors, the Zurko standard etc.

Only when the USSC reigned them in recently did the CAFC back off its hardliner stance. Since then they've been waving obviousness magic wands in cases. Even where there are missing elements etc. in the art (see Odom v MS). While that might be the way the law should be applied that is not how the courts have been interpreting it for a long long time and they have yet to come out expressely saying that their long standing views on such things have now changed.

"But I am not sure where it says it has to be supported by "substantial evidence." "

Check ur Zurko. All factual findings the office makes must be based on substantial evidence. And "substantial evidence" is an evidenciary standard, which I presume you know.

"or to argue the leap from the prior art to the claimed invention was an obvious one ("

There is no such legal animal as an argument that the leap from the prior art to the claimed invention was an obvious one save in very special circumstances (ranges etc). Making jumps of this kind are by and large nothing but violations of the principles in caselaw regarding elements found in references which are being combined.

""As a result of the ruling, "now I can just say, common sense, and a person who was skilled in the particular area, would have known that you could solve this problem using this technique," said Philip Swain, a patent attorney with the firm Foley Hoag in Boston. "You don't have to have a written suggestion or other evidence to suggest the combination; you can just say the person would have inherently known to use that solution.""

Exactly, KSR mainly changed the "motivation" to combine portion of the obviousness analysis. You still have to find all elements in just about every claim. And this is the court's doing.

For the 100th time I think I've told people this. The poor state of patent law has little to do with the statutes themselves and more with the poor interpretations thereof made by the courts.

Re: Re: Re: Re: Re: Re: prior art

"I am not sure what you are trying to say. I already said "Another is the standard for obviousness is not objective, scientific, or rigorous". "

Precisely. You say that it is not objective, scientific or rigorous. And if one were to just look at the statute then one would certainly think that. But the courts are over here trying to make it an objective, scientific and rigorous as they possibly can and have largely succeded. You know the Graham factors, the Zurko standard etc.

It's not objective at all. Nor can it be. I don't blame the courts for this. They are just interpreting arbitrary words decreed by dictate (see the great quote by James Carter in this post, criticizing the nature of statute-interpretation as opposed to the attempt to find justice). You cannot ever find an objective meaning for "reasonable accommodation" in the ADA, for example, but the courts will converge on some standard out of desperation. Same with the patent law. But whatever standard they alight on is still arbitrary, nonrigorous, unscientific, and has nothing to do with justice; it's just interpretation of words in a statute, justice be damned.

Only when the USSC reigned them in recently did the CAFC back off its hardliner stance.

This is irrelevant. The law changes all the time because it is legislated and not rooted in justice, and because it has become political. This is not law. This is rule by the overlords, and whatever they decide today goes.

Since then they've been waving obviousness magic wands in cases. Even where there are missing elements etc. in the art (see Odom v MS). While that might be the way the law should be applied that is not how the courts have been interpreting it for a long long time and they have yet to come out expressely saying that their long standing views on such things have now changed.

This is all irrelevant. I am a patent lawyer and could drop lots of case names and arcane doctrines to try to cow the average reader with my "authority." But I don't think you need to be an "expert" to have an opinion here. In fact I would trust any sane average person any day over a patent lawyer or politician in any of these areas.

There is no such legal animal as an argument that the leap from the prior art to the claimed invention was an obvious one save in very special circumstances (ranges etc). Making jumps of this kind are by and large nothing but violations of the principles in caselaw regarding elements found in references which are being combined.

This is all inside baseball. The courts can cobble together rules to try to interpret a statute? So what? The statute itself is incoherent, irrational, unjust, and necessarily always full of vague, non-objective concepts and standards. Because it is not rooted in justice or property rights; it is simply an arbitrary decree of the state.

Exactly, KSR mainly changed the "motivation" to combine portion of the obviousness analysis. You still have to find all elements in just about every claim. And this is the court's doing.

So?

For the 100th time I think I've told people this. The poor state of patent law has little to do with the statutes themselves and more with the poor interpretations thereof made by the courts.

Completely wrong. There is NO WAY to EVER interpret the patent law "right". And even if you did, it would still result in the patent office issuing little monopolies that people can use to extort and shakedown people competing with them. We have to focus on the problem: the state existing, and granting monopolies to favored supplicants.

Re: Re: Re: Re: Re: Re: Re: prior art

"So?"

So having to find all elements is one of the, if not "the" base issue(s). If you have substantial evidence of all elements then sure it isn't usually that hard to make out an obviousness case for most claims that would otherwise look obvious. And the PTO does a fairly good job in those situations. But in other situations they don't do so well.

Why is that? Because of the court's interpretation of 103.

You seem to have veered far off course in this discussion. This whole discussion is about the PTO issuing claims others would see as obvious.

I put forth that the main reason is the court's interpretation of 103.

Period, and underline that.

'There is NO WAY to EVER interpret the patent law "right"."

You say that but you yourself seem to think that we should just be trying to find justice. If we did that

"We have to focus on the problem: the state existing, and granting monopolies to favored supplicants."

Oh I forgot, we shouldn't base our arguments on the reality of our current situation where the state exists. We should base it on your anarchist paradise.

Stephen pull your head out of your a rse. This isn't a discussion about how to create utopia this was a discussion limited to one very small subject. The PTO issuing claims that seem obvious to others. Not whether the state should exist and not whether the patent system should exist at all.

Those are separate topics, and I may very well agree with you on them, but don't try to bring them up in this fairly limited discussion.

Re: Re: Re: Re: Re: Re: Re: Re: prior art

6, I have to defend the essence of SK's tangent at this madness.

Your explanations in this thread shows a high bar exists to *rejecting* a patent application. This is completely the opposite from what is just or likely to promote the progress. It defaults to monopoly ownership even for simple things if the examiner doesn't happen upon the right mix of material.

It says that the patent monopolist applicant is innocent until proven guilty, but this implies that each and every single other American (each of the 300 million of us) is guilty until proven innocent by the patent examiner since each and every other citizen will lose rights to think and create if that patent examiner cannot prove X is non-obvious.

And to further the insult and injury, the bar is extremely low: merely "non-obvious" to a person having "ordinary" skill in the art (with the prior art being defined only in the limited extent the patent examiner can ascertain from limited tools, access, and time). Do you know what this says to the potentially millions of, eg, software developers that lie on the right half of the skill bell curve: that they are being handcuffed on what they very well find to be rather obvious or even maybe somewhat non-obvious but which they can resolve within a time period much shorter than even 1 week or month.

FWIW, I don't consider software patents too special except in the very important sense that they present stifling issues to a very large number of folks. I also can see how some amount of state handicap hand-out to small inventors might help offset other failures in society that lead others to have tremendous economic levers not accessible to these small inventors and many others willing to put the same hard work into motion. I can even see room for a handicap to large investors/inventors, but a 20 year monopoly is way too much in today's 21st century economy.

Re: Re: Re: Re: Re: Re: Re: prior art

This is all irrelevant. I am a patent lawyer and could drop lots of case names and arcane doctrines to try to cow the average reader with my "authority." But I don't think you need to be an "expert" to have an opinion here. In fact I would trust any sane average person any day over a patent lawyer or politician in any of these areas.

Good luck finding a sane person, average or otherwise. I'm not willing to play Diogenes. Me? I don't pretend to be sane, but I'm not a lawyer, patent or otherwise, just a post-professional software engineer who likes to read.

My view: The Supremes made a mistake in State Street Bank. They clearly had no idea what can of worms was being opened, but the result is that the patent system has broken under the strain.

I think that there's still a use for patent, but using it for business methods and algorithms had turned out to be a nightmare. I could have had a number of patents, but I was an employee, and frankly an obstinate one who recognized that algorithm patent was going to cause way more problems than it solved.

Frankly, I have no idea what problem algorithm and business method solved, other than providing limitless income for NPE's.

Re: Re: Re: Re: Re: prior art

As usual, weenies over-thinking the problem: answer is MONEY.

Simple mechanical fix: patent fee is $100 for every person in a corporation. Simple and proportional. No exceptions, and any fudging on numbers invalidates the patent. -- And not transferrable. And requires a working instantion, can't just hold an "idea" without implementing it. Okay, may take a few such hedges, but it's still simple. -- And here's the real kicker: fee for court filing is also $100 per person in the company, part refundable down to present rates for courts upon /winning/, but a stiff up-front fee just for the privilege of bringing suit.

We've got to start treating corporations as the privileged super-persons that they are, not allowing them "natural" rights.

Algorithm

> One of the key reasons why CAFC rejected the key claims
> was because they were merely "mental processes" that
> someone could do with a pencil and paper, and thus didn't
> require any actual machine.

Wikipedia: "An algorithm is an effective method expressed as a finite list of well-defined instructions for calculating a function." ALL software is algorithms, and ALL algorithms can be done with a pencil and paper, given enough time. You can't patent math, even complicated math.

Furthermore, algorithms are tantamount to ideas, which aren't patentable. The actual code to do things is written in a software language. To get a patent on a manipulation of language is stupid. You can't "patent" stories. To say software code is patentable is like saying you can get a patent on something you created with Lego.

Re: Algorithm

Algorithms by themselves are not patentable, you're correct. But when you are simply using an algorithm to perform some other function they may be included in a patent claim.

For example, say you are using an algorithm to calculate the time need to cure a vat of rubber. That is patentable, as the invention is not exclusively the algorithm.

But this is the problem. Where do you draw the line? Clearly algorithms by themselves are not patentable. But also clearly you can't just conclude nothing with an algorithm in it is unpatentable. So where do we draw the line?

Under current practices, you are almost never writing patent claims to pure software. You are writing claims to some system or process that in part implements software. For example a system which utilizes software to interpret X-Y-Z, calculate A-B-C, and transmit to and display the information on E,F,G.

So its a problem in terms of drawing the line. Too strict and you inhibit innovation. Too lenient and you inhibit innovation. It truly is more difficult than most believe.

^^ PS to my last: yes, I do wish to hamper large corporations.

They have advantages in patent cases as in other areas, so if GE had to cough up $50 million per patent, it'd be fine, while if Joe Inventor comes up with it, he'd pay $100. Joe is hampered by not being able to put it into production without arduous effort of finding investors and building a plant. And since patents shouldn't be transferrable, the obvious dodge of a spate of sole inventors won't occur.

Civilization is ENTIRELY about making matters FAIR, not just letting the privileged use their advantages to detriment of everyone else.

Re: ^^ PS to my last: yes, I do wish to hamper large corporations.

The simple problem: patents are not granted to corporations, only to individuals. Sure, when those individuals are working for a large corporation, they have a prior agreement with that corporation to sign over any patents they generate. But that's a completely separate legal agreement, outside the scope of the PTO.

And of course, patents are considered property... once granted, you're free to do with that property whatever you like. Which also allows inventors to agree to sign over the patent. But that's an actual step. When I have a patent granted, I actually have to sign it over to the company. I could refuse, but they'd be able to take me to court, assuming I had signed the patent agreement with them at the time of my hiring. You can't really extent the power of the PTO to cover legal agreements currently way outside the scope of their current powers.

But I do agree, big companies have an unfair advantage. I was acting a technical adviser to a group of lawyers when I was with Commodore, back in the late 80s when IBM came after Commodore and the Amiga computer. IBM had this big office in Boca Raton, FL... larger than Commodore's whole engineering group, full of their patent guys. IBM didn't file patents on inventions -- they had lawyers pouring over every little thing anyone at the company did, to patent anything that could be patented.

And they learned to work the system. When the PTO started allowing software patents in the early 80s, IBM released a flood of software patents. Why not -- the PTO had essentially no prior art, nor did they have a single examiner "skilled in the art". So they had tons of crap... for example, they had one on cut and paste between different text buffers, from 1984. Something Emacs and others did back in the 70s... just not something in the patent database.

It's a complex issue = bull manure

In my experience, anyone who starts out a discussion with "It's a complex issue" means they've a stake in the issue they're addressing.

Not that I've anything against Pettitt, but something in his words struck a terrifying chord with me. Here are the words:
"Now if I put the same code on a general purpose computer would that be ok? Compare it to a medical device that takes metabolic readings and alarms if they go out of bounds: You could do the same by sitting a nurse down to watch the patient, but the automated device only processing information is clearly patentable under current rules."

If we have a patent system which allows software to be covered over the device, this is why the patent system is a huge burden on innovation. It's patenting a patent (most likely).

In short: it's patenting the tools, not the "invention".

Reason: all computers use the same components, which can not be change. A multiplexer can only do so much. Software can manipulate the multiplexer to do complex things, but the instruction set is standard. One can't make the medical device do more than what it was designed for because its technology prevents it.

Apple's products are not innovative. Instead, they're re-formed and re-designed, then patented, which is absurd.

Sorry, Mr. Pettitt, this situation is not complex. Software designers deserve no patents. This isn't complex at all.

Re: It's a complex issue = bull manure

It's complex because the line as to what is software is not easy to define. If you build an analog device that does something and get a patent but if you build the exact same device using off the shelf programmable parts under the 'no software patents' logic it's not patentable.

For example - there is an important patent on intermittent windshield wipers, one that was litigated for a long time and eventually the auto makers lost. But clearly it's just automating a manual process and if you use a gp micro to do it it would be considered a software patent but if you used a 555 timer it wouldn't - that's nuts. The invention itself should be what matters.

The problem is not that inventions implemented in software are getting patents - it's that pretty much anything thrown at the patent office gets a patent - if the standard for examination and issue were higher we wouldn't be in this mess.

Re: Re: It's a complex issue = bull manure

"The problem is not that inventions implemented in software are getting patents - it's that pretty much anything thrown at the patent office gets a patent - if the standard for examination and issue were higher we wouldn't be in this mess."

Well, it's not true that anything you apply for can get patented. Some patent apps are rejected and have to be abandoned. And raising the bar would not fix anything at all.

I think it's wrong to say that we would "not be in this mess" otherwise. Sure, there would be fewer patents around for patentees to use to extort their victims, but that's similar to reducing taxes from 50% to 40%. Not as bad, but still bad. Even if the number of patents fell by 50% and their "quality" rose so that almost every patent was really "valid" according to patent law: this is totally irrelevant, since they would still be used to gum up the market and innovation; they would still be used to threaten and extort innocent companies. The only solution is complete abolition of patents--they are completely unjustiifed state grants of monopoly privilege explicitly designed to squelch and suppress market competition.

Re: Re: It's a complex issue = bull manure

No amount of "higher" would correct that system.
It is not clear what needs to be patented or not, it is not clear if patents have even a place in todays market where anyone can come in and start producing something, when in the past only a handful of people had the capital to do so.

Innovation under the current environment may not even need patents to promote it, they would just need freedom for people to cut each others throats in the market place and that would be a good thing for everybody except the competitors that would have to work harder in that environment.

Case in point the tech industry for much of its existence didn't care about patents and they copied each other like crazy Apple did it, IBM did it, Microsoft did it, Google did it, Facebook did it and somehow they grew into giants in the market place without relying on patents.

If the purpose of patents it is to promote progress then they should be greatly relaxed so competition can flourish and maybe patents can be thrown out all together at this point.

Re: Re: It's a complex issue = bull manure

Patents at the moment are only good for the patentee not the other people who have to live with those things.

It is not promoting growth, it is promoting creation of giant pools of patents that will be used to exclude everybody else that doesn't make part of it which means end of competition, which means the end of natural pressure that keeps the free market healthy.

Re: Re: It's a complex issue = bull manure

"It's complex because the line as to what is software is not easy to define. If you build an analog device that does something and get a patent but if you build the exact same device using off the shelf programmable parts under the 'no software patents' logic it's not patentable."

So what?

Why not just say the patent system is "working as intended" and move on with your life?

Also, just as an aside, I'm much less impressed by the windshield wiper patent (debacle?) than you are.

"- that's nuts"

It isn't that nuts.

"if the standard for examination and issue were higher we wouldn't be in this mess."

Yeah but it's hard as f to come up with what that should be across the board. That's why we need mini-patent systems for different arts imo. If we keep them at all. Pirate party anyone?

Re: Re: It's a complex issue = bull manure

John Pettitt, it's not a complex issue.

Yes, the analog machine == patentable.

Yes, implementing it in software == unpatentable.

The invention of the computer -- an actual implementation of a Universal Turing Machine equivalent -- has implications which are not obvious to you. One of those implications is that it is the inventors of the digital computer who hold the only valid patent.

*The moment the computer was available, implementing practically anything in software became OBVIOUS.*

Mental processes and side effects

So long as you have to make your own special device to infringe, rather than being able to infringe upon the patent with a general purpose computer, I don't have that much of a problem. The idea that people are constantly reinventing a general-purpose internet-connected computer by loading new software on it is what got us into this mess, after all.

I also think that the line drawn is a bit absurd, in that it relies on human capability. If they want to carve out what is and is not a purely mental process, they ought to look to the notion of "side effects" in computer science. Basically, there are no side effects if one can replace the calculation of some thing with its result without affecting the outcome.

That said, there are a lot of very trivial side effects in common systems, and they trip up programmers as well as compiler optimizers. For example, one might zero out a range of memory containing a cryptographic key. Optimizers then see this, realize that its a trivial operation, and remove it entirely, knowing that we will never read back those zeros. That, of course, defeats the purpose of erasing the secret key.

That "panel of experts" like any official in a government judgement position MUST not hold any patents, any investment in patents, or receive any reward from anyone who falls in either preceding categories.

bias

It's about property rights. In Federalist No. 43, James Madison wrote regarding constitutional rights of inventors, "The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals."

Re: bias

You pointed to a great reference suggesting the high degree to which the founding fathers both *assumed* that progress would be promoted and of the *requirement* that progress be promoted in order to justify that power of Congress (to create patents).

Patents that do not promote the progress would have little support apparently from the people who gave Congress that power.

Simple Solution

If I patent a device I must give drawings showing how it's made...

If you want to patent software, you should be required to provide source code for the implementation. That would give full disclosure of the patented section, allow simple comparisons between different implementations (a mousetrap is a mousetrap, the implementations may different and non-infrenging), and also
let the reviews actually do a full review (if you can implement the invention in 2 lines of code... maybe it should be patentable).

Re: Simple Solution

If you want to patent software, you should be required to provide source code for the implementation. That would give full disclosure of the patented section

Why? Other inventions do not have to disclose every single detail. The entire idea of disclosure is you provide a written description, that does not hide the best mode, and that provides enough written description to enable someone skilled in the art to make it "without undue experimentation." That is why source code need not be disclosed: it is copyrigh that protects the source code. Patent protects the underlying method or flow-chart level operation of the software--not just the particular implementation.

In fact, because there is no working-model or working requirement, you do not even have to WRITE the software to get a patent on it. A non-programmer could just sketch out a flow chart of what his envisioned software "woudl do" and get a patent on THIS. There is no source code to disclose!

If you require source code, in such cases, that means you are changing patent law to require a working model. Fine by me, but this is a change to the requirements for patentability not for disclosure. in fact I did propose something like this in Reducing the Cost of IP Law: "Under current law, there is no requirement that an invention be actually reduced to practice before a patent is granted on it, or that it be "worked" after grant to maintain the patent in force. When a patent application is filed, this is considered to be a "constructive reduction to practice." It would make it more difficult to obtain frivolous patents if the inventor had to make an actual, working model of the invention — and if the patented invention had to be actually worked or used by the patentee to stay in force."

Re: Re: Simple Solution

The implementation test.

"I also like the idea that weak disclosures should invalidate a patent, since that would kill a bunch of patents, but I do wonder how you put that into practice."

The test for all other patents is that one, skilled in the art, should be able to implement the patent using only the information and claims in the patent without having to invent anything not claimed in the patent. If the patent doesn't show that you need a cog in a particular place, but that cog is necessary to get the thing to work, then the patent is invalid. Considering that in most software patents all they ever do is say "a means to do x" without EVER describing what that "means" is, I would think simply applying the existing rule would invalidate almost all of these patents.

I can't see all of the comments, so I'm not sure if this has already been touched on, but the decision by the court is not as simple as it is presented in the article.

It is true that the key reason the patent was overturned was because it could be carried out on paper -- BUT the decision was very specific to note that it was *practical* to do so. In other words, patents that could not practically be carried out by a person with pen and paper are still valid.

In this case, the patent was trivial and could be carried out by a person in a few seconds on paper. Thus, the patent's claim to validity was simply that it had been *implemented* on a computer, not that it *had to be*. That is the key issue here!

Consider another credit card security system that is based not on features of the card, but by examining purchase histories. In order to work with a level of accuracy required, it needs to examine 10 billion purchase histories for every check. In theory a human could carry out all of the steps involved, however, they would be dead before they completed the task. A computer could carry out the same calculation in a split second. Thus the task could not *practically* be carried out by a person, but could by a computer, and is thus valid to patent.

Frankly, the decision seems like an excellent one. It covers all of the examples people are introducing here (that I can see) that they believe are counters. It's the "practicality" that is all throughout patent law, this decision is simply following well-known case law.

Same machine, new instructions

>> In this case, the patent was trivial and could be carried out by a person in a few seconds on paper. Thus, the patent's claim to validity was simply that it had been *implemented* on a computer, not that it *had to be*. That is the key issue here!

Right, that is how the court ruled, but the ruling wasn't totally consistent, and it is flawed to call a machine with new instructions to be a new machine.

When you call someone a different person, you don't literally mean they are a different person. You mean that their behavior is different than what you expected. They are behaving according to different instructions coming from their brain.

Same thing with a computer running new software: same machine, different expected behavior because of differences in instructions being executed.

>> Frankly, the decision seems like an excellent one. It covers all of the examples people are introducing here (that I can see) that they believe are counters.

I can't see all of the comments, so I'm not sure if this has already been touched on, but the decision by the court is not as simple as it is presented in the article.

It is true that the key reason the patent was overturned was because it could be carried out on paper -- BUT the decision was very specific to note that it was *practical* to do so. In other words, patents that could not practically be carried out by a person with pen and paper are still valid.

In this case, the patent was trivial and could be carried out by a person in a few seconds on paper. Thus, the patent's claim to validity was simply that it had been *implemented* on a computer, not that it *had to be*. That is the key issue here!

Consider another credit card security system that is based not on features of the card, but by examining purchase histories. In order to work with a level of accuracy required, it needs to examine 10 billion purchase histories for every check. In theory a human could carry out all of the steps involved, however, they would be dead before they completed the task. A computer could carry out the same calculation in a split second. Thus the task could not *practically* be carried out by a person, but could by a computer, and is thus valid to patent.

Frankly, the decision seems like an excellent one. It covers all of the examples people are introducing here (that I can see) that they believe are counters. It's the "practicality" that is all throughout patent law, this decision is simply following well-known case law.

Same machine or person, new behavior

>> In this case, the patent was trivial and could be carried out by a person in a few seconds on paper. Thus, the patent's claim to validity was simply that it had been *implemented* on a computer, not that it *had to be*. That is the key issue here!

Right, that is how the court ruled, but the ruling wasn't totally consistent, and it is flawed to call a machine with new instructions to be a new machine.

When you call someone a different person, you don't literally mean they are a different person. You mean that their behavior is different than what you expected. They are behaving according to different instructions coming from their brain.

Same thing with a computer running new software: same machine, different expected behavior because of differences in instructions being executed.

>> Frankly, the decision seems like an excellent one. It covers all of the examples people are introducing here (that I can see) that they believe are counters.

Shorten Software Patent Life

I think shortening software patent life would help tremendously. I was thinking 5 years but I could go along with 10. I can't help imagining how much faster the software would improve if this where so. I really do need to write my congressman about it and supply a lot of reads for him to support my argument. I think this is one hell of a good article. Thank you so much for this.

The infamous XOR patent: prior invention by a UC Davis student

Several years ago I published an article on Groklaw about patent reform. Here is a brief excerpt:

"I am also the victim of one of the most notorius software patents: The infamous 'XOR Cursor' patent, #4,197,590, filed in 1978 and granted in 1980. Way back in 1976, while a student at UC Davis, I built a computer terminal for NASA that used an XOR to move the cursor around the screen. The work was published in an obscure NASA journal. Only recently did I learn that Cadtrak has collected large sums of money and successfully defended patent #4,197,590 against a number of claims, on something I invented as a sophomore computer-engineering student. Talk about 'obvious to anyone versed in the art.' Had our work for NASA been more widely published, or if I'd worked in a job where I might have run into the Cadtrak controversy, Cadtrak would probably have lost the patent. Instead, I only found out about the XOR patent last year, after it had expired."

I have been in software since 1978, and am now CTO of a successful internet company. I have never one ounce of evidence that software patents foster innovation.

Re: The infamous XOR patent: prior invention by a UC Davis student

Yeah, I ran into the infamous Cadtrack patent while at Commodore. I had figured this out myself, as a teenager in 1979, playing around with my Exidy "Sorcerer" home computer. Talk about being obvious to one killed in the art. There should be a general rule that if a self-taught teenager can independent derive your "invention", it can't be patented.

Re: Validating Patents

Although you may be right, keep in mind that the law has a very low inventiveness standard: "non-obvious" to a person having "ordinary" skill in the art. So we will still get patents to pass that do not contribute much to the art and which would stifle many many software developers (eg, those of above "ordinary" or average skill) for a long time.

Repear patent system

One thing that may also help, there should be a cost for using (in litigation or just by asking or receiving money) a patent that later is found invalid.
That should for one stop the practice of sending vague treat letters and suing with a lot of claims in the hope some will survive.
There may be an exception if the patent holder can prove he really, really could not know or predict that his patent would be found invalid.
But in general he should know, he represents the inventor, the expert. He is in the business for that technology, for that patent. He knows how many claims fail in reexamination and why. He should know why his will stand. He knows how many potential prior art there is and if he can possibly exclude that there is none for his patent.
And it would be just, it is not very nice to ask money and even threaten someone to sue on the basis of things that may perhaps be true. Imagine getting a bulk of bill's just because the sender does find it to complicated to find out what you really own, and, and what's more, hopes that also you don't remember.

Misses the point

The argument sounds so reasonable. "Don't get rid of patents entirely, just improve the system"

The thought process is so naive and completely misses the point, which is this:

There will ALWAYS be powerful special interests lobbying to make patents worse.

So even if we manage to improve the system( which is a big IF seeing as there are already special interests who would prevent such a move), there will be existing companies that lobby the congress again and again to increase patent fees, extend their life, etc.

A patent is nothing more than a grant of temporary monopoly. monopolies are bad. period. Give someone a temporary monopoly (like a patent) and they will do everything they can to make it last forever.

The only true reasonable solution is to abolish patents entirely. Not just for software (though that's a good first step) but abolish them all.

How to fix patents in 1 easy step.

This may seem like a trite answer, but I think it could go along way to solving a lot lawyer-tax on patents.

Change the requirements that patents be "reducible to practice" to "reduced to practice". Basically, if you haven't built it, you can't patent it. Similarly, for software if you wrote your app in Java, you can't patent the Python version unless your wrote that, too.

Full disclosure: I may be shooting myself in the foot here as I work in the IP industry and my wife is a IP lawyer, though IANAL.

Opinion

i agree

I agree with Pettitt's idea of implementing a shorter term for software patents. Instead of the usual costly, 20-year patent, why not consider an inexpensive, limited, 5-to-10-year software patent that reflects software's low overhead and rapid obsolescence? Some other countries offer multi-tiered patent systems; I think it's time the U.S. started discussions in that area.

Not quite.

No, patents are not meant to "protect" innovation. This is why so many people get it wrong. Patents are meant only to STIMULATE innovation. And that stimulation is broad-based, it cannot be looked at on an individual inventor basis.

There are several modes where this stimulation occurs. It occurs in the race to the patent office and it occurs in rewarding inventors a patent, allowing them to further develop a given piece of subject matter. Of course there are examples of "unfairness" in terms of individual inventors, but that is not the goal and has never been the intended goal of the US patent system.

The US Patent Systems only goal is to stimulate the net innovation across society as a whole. And nearly every study that exists has shown that globally more innovation occurs when a patent regime is in place.

Of course there are things that can be tweaked when applying hindsight. The problem is we have a very hard time predicting how those tweaks will impact future innovation, will it inhibit it, foster it?

While the system is not perfect, in my eyes the best way to ensure a functioning system is to allow market forces to handle the subject matter post-grant. That doesn't mean we should heighten the bar in terms of quality. But I think its ill advised to simply redefine what does and doesn't deserve a patent everytime we run across a technology sector that's a bit unique in terms of subject matter.